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Adjournment Motion – Direct Provision by the Department of Justice and Equality

Senator Jillian van Turnhout: Although I am disappointed that none of the Adjournment matters I have raised in regard to direct provision has been taken by the Minister for Justice and Equality, who has direct responsibility for the matter, I welcome the presence of the Minister for Health.

The system of direct provision has been in operation since April 2000. However, concerns have been expressed about the lack of a legislative basis for the operation of direct provision. In light of the Ombudsman’s concern about the operation of the former mobility allowance scheme, it is essential that the rule of law operates in all aspects of our social welfare code. When direct provision was initially introduced 13 years ago, it was viewed as a limited system that would operate for a maximum of six months. However, the legal basis for the system is now unclear. When it was initially introduced it was argued that the direct provision for asylum seekers was permitted by providing supplementary welfare allowance in kind rather than in cash. Asylum seekers were offered bed and board by the Reception and Integration Agency and were provided with a weekly allowance of €19.10 per adult and €9.06 per child, amounts that have not changed since 2000.

Since the introduction of the Social Welfare and Pensions (Miscellaneous Provisions) Act 2009, asylum seekers cannot be considered as habitually resident in the State. Given that access to most welfare payments, including supplementary welfare allowance, is restricted to those who are habitually residents, what is the legislative basis for the continued accommodation of and payments to asylum seekers?

Dr. Liam Thornton, a researcher on the law and policy of direct provision in UCD’s school of law, recently published an article on the dubious legality of the direct provision system. The article notes that in 2006 the then Secretary General of what is now the Department of Social Protection, Mr. John Hynes, raised his concern with the then Secretary General of what is now the Department of Justice and Equality, Mr. Seán Aylward, that the regular direct provision payments to asylum seekers were outside the powers, or ultra vires, of the Department of Social Protection. According to documents received by Dr. Thornton after a freedom of information request, an attempt was made in 2006 or 2007 to place the direct provision payment on a legislative footing. However, the attempt was subsequently abandoned. I can provide the Minister with a copy of Dr. Thornton’s article, the correspondence between the Secretaries General and the draft legislation if he so desires.

It is necessary for the Minister for Justice and Equality to provide an assurance that the direct provision system has a clear legislative basis in Irish law. It is of serious concern that the system leaves individuals and, in particular, families to languish for several years without any definitive decision on their entitlement to remain in the State. I welcomed the Immigration, Residence and Protection Bill 2010 but it has been on Committee Stage in the Dáil since 2010. We have now been waiting for that Bill for eight years and counting. What is the legislative basis for the continued operation of the direct provision system?

An Cathaoirleach, Senator Paddy Burke: Before I call the Minister to reply, I ask Members to join me in welcoming the Right Honourable Ivan Rombouts, the honorary consul in Antwerp.

Minister James Reilly: He is very welcome. I recognise the tie. I am responding on this topic on behalf of my colleague, the Minister for Justice and Equality. The question asked by the Senator presupposes that there must be a specific legislative underpinning for the provision of State services to persons who otherwise would not be entitled to such services. Legislating for legislation’s sake is unwise. If a case is being made for a change in how asylum seekers are accommodated, which is a view that the Senator has expressed on a number of occasions, that is an issue for policy in the first instance rather than legislation.

The direct provision system ensures the delivery of services alongside legislative provisions which would otherwise specifically prohibit asylum seekers from being provided with the basic necessities of life. For example, asylum seekers cannot work under section 9(4)(b) of the Refugee Act 1996, cannot access rent allowance under section 13 of the Social Welfare (Miscellaneous Provisions) Act, 2003 and are not entitled to a range of benefits, including child benefit, as they are deemed to be not habitually resident under section 246(7) of the Social Welfare Consolidation Act 2005.

As an administrative system, direct provision is unique in this State but as a result of it no asylum seeker has ever been left homeless. Clearly the system is not without its faults but in the 13 years of its existence over 51,000 asylum seekers have been accommodated under it. Asylum seekers receive nourishment on a par with, and in some cases superior to, that available to the general population. They receive a health service on the same basis as Irish citizens and in many cases the service is far superior to what is available in their countries of origin. Children of asylum seekers are provided with primary and secondary education in the local community on the same basis as the children of Irish citizens. The system of direct provision is not unique to Ireland. Many other countries operate similar systems for meeting the reception needs of asylum seekers and all face challenges which are broadly similar to the issues arising here.

There are no cheaper alternatives to the direct provision system. If we were operating a system which facilitated asylum seekers in living independent lives in individual housing with social welfare support and payments, the cost to the Exchequer would be double what is currently paid under the direct provision system, even discounting the additional pull factor this would entail.

This was a key finding in the value for money report in 2010.

Allowing asylum seekers access to the full array of welfare and housing benefits would run a real risk of resulting in a large upsurge in economic migrants masquerading as asylum seekers coming here in the expectation of accessing these services. Furthermore, in respect of any major change of policy, we have to take account of the common travel area between Ireland and the United Kingdom which facilitates free movement between the jurisdictions.

It must be borne in mind that the persons residing in direct provision accommodation are here for a specific reason, namely, to claim international protection from the State. This entitlement is protected by international obligations which the State has entered into and by a comprehensive national and EU legal framework and accompanying administrative processes which govern the processing of protection applications.

The Minister acknowledges that there is an issue with the length of time applicants spend in direct provision accommodation. While not suggesting applicants are not entitled to the protection of the courts and due process, a consequence of frequent recourse to the courts to challenge decisions in these legislative processes is an extension of the length of time spent in direct provision accommodation. This underlying problem does not arise from a lack of legislation – quite the opposite. There are many reasons applicants spend lengthy periods in direct provision accommodation. I have referred to legal challenges as one reason. Undoubtedly, another significant issue is the cumbersome and multi-layered legal protection process in the State. There is a clear imperative to change and radically reform that process and the Minister is committed to introducing it.

As the Minister has stated, he intends to republish a revised immigration, residence and protection Bill which will substantially simplify and streamline the existing arrangements for asylum, subsidiary protection and leave to remain applications. It will do this by making provision for the establishment of a single application procedure in order that applicants can be provided with a final decision on all aspects of their protection applications in a more straightforward and timely fashion, thus reducing the length of time they spend in the direct provision system.

Pending the enactment and commencement of the new legislation and with a view to improving processing, the Minister proposes to introduce new arrangements for the processing of subsidiary protection applications in the light of recent judgments in the superior courts. His Department, in consultation with the Attorney General’s office, is developing a new legislative and administrative framework for the processing of current and future subsidiary protection applications. This work is being given high priority and applicants will be advised of the new arrangements as soon as possible. In the meantime, the system is overseen by the Reception and Integration Agency of the Department of Justice and Equality. The RIA is subject to the same Civil Service obligations of fairness in the implementation of policy as any other area of government in implementing a scheme, statutory or non-statutory. It is worth noting that since the Minister took office, the number of persons being accommodated in direct provision accommodation has fallen significantly, by approximately 1,000 or 25% in the period in question.

Senator Jillian van Turnhout: Perhaps my question was not clear enough. I will take it up again with the Minister for Social Protection. The correspondence between the then Secretary General of the Department of Social Protection and the Department of Justice and Equality in 2006 states payments made to asylum seekers were ultra vires the Department of Social Protection. The Social Welfare and Pensions Act 2009 clearly states asylum seekers cannot ever be considered habitually resident in the State. My question is: how is the State making these payments? I advise the Cathaoirleach that I propose to submit a request to raise this matter on the Adjournment with the Minister for Social Protection. While I appreciate the response given by the Minister for Health, Deputy James Reilly, it does not answer my question.

Minister James Reilly: The Minister would like to be here, but that is not possible. On his behalf, I acknowledge the points made by the Senator. However, this is essentially about policy rather than legislation, as emphasised by the Senator in her follow-up remarks. The reasons behind that policy remain unchanged. The direct provision system was not put in place by accident; it was a necessary response to the increasing number of asylum seekers arriving in the State. Before 1999, asylum seekers were treated as homeless persons under the structures in place. These structures were unsuited to the situation facing Ireland; the homeless persons service of the then Eastern Health Board could not cope and there was a serious prospect of widespread homelessness among asylum seekers. The direct provision system is only one element of the State’s response to its international obligations on the asylum issue. As well as educational, health and welfare costs, there are asylum determination system and downstream judicial and policing costs. Meeting our international obligations in this respect consumes considerable public moneys. However, Ireland is not unique in this respect. All countries which take this issue seriously are faced with similar calls on their financial resources. The role of the Reception and Integration Agency is to adapt to circumstances in ways which specific legislative provisions might not anticipate. In recent years it has introduced child protection measures, including Garda vetting, and will in the coming months begin to publish on its website completed inspection reports on each of the centres under contract to it. It has also to adapt to the decline in the number of persons seeking accommodation. In the four year period 2009 to 2012, inclusive, it closed 25 centres and accommodated 2,161 fewer persons. This flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

Senator Jillian van Turnhout: My question is about the legal status of the payments being made. It is not about the legal status of the policy in place. I appreciate the Minister’s response, but it does not address my question.

Minister James Reilly: I will make the Minister for Justice and Equality, Deputy Alan Shatter, aware of the position.